Protecting Pre-72 Sound Recordings

UPDATE: LEGISLATIVE ACTION

On July 19, 2017, Representatives Darrell Issa (R-CA) and Jerrold Nadler (D-NY) were joined by the original sponsors of the Fair Play Fair Pay Act in introducing the Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act (CLASSICS Act), H.R.3301. This legislation is intended to be an improvement upon the pre-72 provisions in the Fair Play Fair Act, which only covered recordings streamed by non-interactive services. CLASSICS would benefit artists and music creators who recorded music before 1972 by requiring royalty payments whenever their music is played on any digital radio service. SoundExchange would distribute royalties for pre-72 recordings played by internet, cable and satellite radio services just as it does for recordings made after 1972. The bill enjoys broad support from both music creators and digital service providers. Organizations that have joined SoundExchange in expressing support for the new legislation include: American Association of Independent Music, the Recording Industry Association of America, Pandora, musicFIRST Coalition, the Internet Association, the GRAMMYs, Screen Actors Guild‐American Federation of Television and Radio Artists, American Federation of Musicians, the Content Creators Coalition, the Future of Music Coalition, the Rhythm and Blues Foundation, and the Living Legends Foundation. Read the joint statement of support from Pandora, SoundExchange and RIAA here.

Background

Sound recordings were first brought within the scope of federal copyright protection beginning in 1972. Sound recordings made before February 15, 1972 are protected by various state laws. State law protection for these legacy recordings will continue until 2067, at which time all state protection will be preempted by federal law. Even though these recordings are protected by state law, some digital music services were using them without paying royalties or otherwise getting permission. SoundExchange estimates that non-payment for pre-1972 recordings cost artists and labels well over $60M in royalties in 2014 and more than $70M in royalties in 2015.

In 2014, several copyright holders, including Flo & Eddie of The Turtles (“Happy Together,” “She’d Rather Be With Me”) and a group of major and independent record labels, took legal action to defend their rights in their pre-1972 sound recordings under state statutory and common law. They allege that SiriusXM and Pandora refused to license and pay royalties for the use of pre-1972 sound recordings, violating state laws. SoundExchange filed its own lawsuit against SiriusXM as well, which separately addresses Sirius XM’s underpayment of royalties under federal law. Many of these lawsuits have resulted in settlements between the copyright owners and the services that had been withholding royalty payments, but these settlements did not create certainty in the law about the protection of recordings from this iconic era of music.

Legislative Action

In mid-2014, SoundExchange launched Project72, a campaign to ensure fair pay for artists who recorded their music before 1972. One result of the campaign was legislation introduced in the House of Representatives during the 113th Congress. That bipartisan legislation, called the RESPECT Act, would have required digital services to pay for all the music they play, regardless of the year it was recorded. In the 115th Congress, the RESPECT Act is now part of the Fair Play Fair Pay Act, H.R.1836, introduced by Representatives Jerrold Nadler (D-NY), Marsha Blackburn (R-TN) and Darrell Issa (R-CA).